Yesterday marked the one year anniversary of the death of Justice Antonin Scalia. I rather suspect, based on how things are turning out, that Scalia spent the last year laughing his tail off in Heaven.
Some Patheos “Catholic” hatred was unleashed against Justice Scalia by blogger Artur Rosman last month:
In other words, Scalia’s nationalist god is an idol, not the Christian God.
You might say that in a pluralistic country like the United States we have no choice but to accept such watered-down idols in order to be free to worship the One True God. But such Migrations of the Holy, as the title of William T. Cavanaugh’s book I cite below calls them, have a price, a very steep price:
The deepest theological danger inherent in American exceptionalism, then, is that of the messiah nation that does not simply seek to follow God’s will, but acts as a kind of substitute god on the state of history. When the concept of chosenness becomes unmoored from the biblical narrative, the danger is that the nation will not only be substitute church but substitute god. When the shrine is emptied of the biblical God and replaced with the generic principle of transcendence, the danger is that we will not come to worship God but will worship our freedom to worship God. The empty shrine is surreptitiously filled. Our freedom itself becomes an idol, the one thing we will kill and die for.
Yes, what if, as some Americans like to say, “Freedom isn’t free?”
In the end, the cost of discipleship is going to be high, whether you end up serving the Prince of Peace in the Ecclesia Militans, or the American military and America’s ruling markets.
Most judicial writing is so bad, riddled with jargon and bloviation, that only people paid to do so would ever bother to read it. The late Justice Antonin Scalia was the exception to this rule. His writing was vibrant, free from both cant and jargon, and often extremely amusing. Bruce T. Murray at Sage Law.US has compiled some of Justice Scalia’s greatest hits:
“Those who wish to create indecent and disrespectful art are as unconstrained now as they were before the enactment of this statute. Avant-garde artistes such as respondents remain entirely free to épater les bourgeois; they are merely deprived of the additional satisfaction of having the bourgeoisie taxed to pay for it. It is preposterous to equate the denial of taxpayer subsidy with measures aimed at the suppression of dangerous ideas.”
— National Endowment for the Arts v. Finley, 525 U.S. 569 (1998) (Scalia, J., concurring)
“All the provisions of the Bill of Rights set forth the rights of individual men and women – not, for example, of trees or polar bears.”
— Citizens United v. FEC, 558 U.S. 310, 391-392 (2010)
“If forbidding peaceful, nonthreatening, but uninvited speech from a distance closer than eight feet is a ‘narrowly tailored’ means of preventing the obstruction of entrance to medical facilities (the governmental interest the State asserts), narrow tailoring must refer not to the standards of Versace, but to those of Omar the Tentmaker.”
— Hill v. Colo., 530 U.S. 703, 749 (2000)
All of Justice Antonin Scalia’s judicial opinions tend to be memorable, but I think his dissent in OBERGEFELL v. HODGES will perhaps be his most cited opinion in what I expect to be a dangerous time for the American Republic over the next few decades. Here are quotes from his dissent to remember:
1. It is of overwhelming importance, however, who it is that rules me. Today’s decree says that my Ruler, and the Ruler of 320 million Americans coast-to-coast, is a majority of the nine lawyers on the Supreme Court.
2. This practice of constitutional revision by an unelected committee of nine, always accompanied (as it is today) by extravagant praise of liberty, robs the People of the most important liberty they asserted in the Declaration of Independence and won in the Revolution of 1776: the freedom to govern themselves.
3. Buried beneath the mummeries and straining-to-be-memorable passages of the opinion is a candid and startling assertion: No matter what it was the People ratified, the Fourteenth Amendment protects those rights that the Judiciary, in its “reasoned judgment,” thinks the Fourteenth Amendment ought to protect.
4. This is a naked judicial claim to legislative—indeed, super-legislative—power; a claim fundamentally at odds with our system of government. Except as limited by a constitutional prohibition agreed to by the People, the States are free to adopt whatever laws they like, even those that offend the esteemed Justices’ “reasoned judgment.” A system of government that makes the People subordinate to a committee of nine unelected lawyers does not deserve to be called a democracy.
5. The strikingly unrepresentative character of the body voting on today’s social upheaval would be irrelevant if they were functioning as judges, answering the legal question whether the American people had ever ratified a constitutional provision that was understood to proscribe the traditional definition of marriage. But of course the Justices in today’s majority are not voting on that basis; they say they are not. And to allow the policy question of same-sex marriage to be considered and resolved by a select, patrician, highly unrepresentative panel of nine is to violate a principle even more fundamental than no taxation without representation: no social transformation without representation.
6. But what really astounds is the hubris reflected in today’s judicial Putsch. The five Justices who compose today’s majority are entirely comfortable concluding that every State violated the Constitution for all of the 135 years between the Fourteenth Amendment’s ratification and Massachusetts’ permitting of same-sex marriages in 2003. They have discovered in the Fourteenth Amendment a “fundamental right” overlooked by every person alive at the time of ratification, and almost everyone else in the time since. They see what lesser legal minds— minds like Thomas Cooley, John Marshall Harlan, Oliver Wendell Holmes, Jr., Learned Hand, Louis Brandeis, William Howard Taft, Benjamin Cardozo, Hugo Black, Felix Frankfurter, Robert Jackson, and Henry Friendly— could not.
7. These Justices know that limiting marriage to one man and one woman is contrary to reason; they know that an institution as old as government itself, and accepted by every nation in history until 15 years ago, cannot possibly be supported by anything other than ignorance or bigotry. And they are willing to say that any citizen who does not agree with that, who adheres to what was, until 15 years ago, the unanimous judgment of all generations and all societies, stands against the Constitution.
8. The world does not expect logic and precision in poetry or inspirational popphilosophy; it demands them in the law. The stuff contained in today’s opinion has to diminish this Court’s reputation for clear thinking and sober analysis.
9. Hubris is sometimes defined as o’erweening pride; and pride, we know, goeth before a fall. The Judiciary is the “least dangerous” of the federal branches because it has “neither Force nor Will, but merely judgment; and must ultimately depend upon the aid of the executive arm” and the States, “even for the efficacy of its judgments.” With each decision of ours that takes from the People a question properly left to them—with each decision that is unabashedly based not on law, but on the “reasoned judgment” of a bare majority of this Court—we move one step closer to being reminded of our impotence.
Death came for Chief Justice Roger B. Taney of the United States Supreme Court 150 years ago. Nominated as Chief Justice by his friend President Andrew Jackson and had sat on the court for 28 years. Although he had authored many important decisions, he is remembered today only for one: Dred Scott. 87 years old at the time of his death, Taney, a slave owner, had mirrored the tragic trajectory of the views of the South in regard to slavery in his own life. As a young man he regarded slavery as a blot on our national character, as he said in his opening argument in defense of a Methodist minister accused in 1819 of inciting slave insurrections. He emancipated his own slaves. However, by the time he authored the Dred Scott decision in 1857 he would write:
It is difficult at this day to realize the state of public opinion in regard to that unfortunate race which prevailed in the civilized and enlightened portions of the world at the time of the Declaration of Independence, and when the Constitution of the United States was framed and adopted; but the public history of every European nation displays it in a manner too plain to be mistaken. They had for more than a century before been regarded as beings of an inferior order, and altogether unfit to associate with the white race, either in social or political relations, and so far unfit that they had no rights which the white man was bound to respect.
Taney thought that the decision in Dred Scott would settle the slavery issue in regard to the territories and remove it from politics. Instead the decision inflamed public opinion North and South and manifestly helped bring on the Civil War. Taney lived to see his nation riven by Civil War and an administration in power dedicated to restoring the Union and abolishing slavery, and more than willing to ignore the paper edicts of Taney’s court when necessary. Old and sick, Taney remained on the bench, unwilling to have Lincoln name his successor, a living relic of a bygone era. The best epitaph for Taney I have ever read was that given by Justice Antonin Scalia in his magnificent dissent in Planned Parenthood v. Casey:
Internment camps were set up after Pearl Harbor during the invasion scare. Several thousand Italian-Americans and eleven thousand German Americans were interned during the war, but these were individuals who were picked up because investigations indicated that they could be a domestic threat. The west coast Japanese were simply scooped up with no individual investigations. J. Edgar Hoover, head of the FBI, opposed the internment of the Japanese, regarding it as completely unnecessary, but his views sadly were ignored. About 120,000 Japanese -Americans were interned during the war, the vast majority loyal Americans.
The Supreme Court upheld the constitutionality of the internment in the case of Korematsu v. United States. The vote was 6-3. Six out of the eight Supreme Court Justices appointed by FDR voted to affirm the constitutionality of the internment. The lone Republican on the court, Justice Owen Roberts, wrote a dissent which deserves to be remembered. It begins simply and directly:
Fred Biery, a Bill Clinton appointee, is a Federal District Judge down in Texas. In order to satisfy two village atheist parents of a student who contend that their 18 year old “child” will be irreparably damaged if any prayer escapes any lips during his high school commencement ceremony, Biery has banned all prayer at the high school commencement of the Medina Valley Independent School District on Saturday. This includes the Judge censoring the speech of the valedictorian of the graduating class, Angela Hildebrand, a Catholic, who wished to say a prayer in her speech.